Assembly Bill A8183

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8183

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             October 4, 2013
                               ___________

Introduced  by  M.  of  A.  SCHIMMINGER -- read once and referred to the
  Committee on Governmental Operations

AN ACT to amend the executive law, in relation to authorizing the estab-
  lishment  and  operation  of  public-private  partnerships   for   the
  construction and operation of public infrastructure

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative intent. The legislature hereby finds that there
is a public need for  timely  development  and/or  operation  of  public
infrastructure within the state that address the needs identified by the
state  and  its  political  subdivisions by relieving the burden of real
property taxation, creating private  sector  jobs,  attracting    global
economic  development,  creating opportunities for small, minority-owned
and women-owned businesses, enhancing economic efficiency and that  such
public  need may not be wholly satisfied by existing methods of procure-
ment and operation in which qualifying public infrastructure  is  devel-
oped  and/or  operated.   Authorizing private entities to develop and/or
operate one or more public infrastructure may result in the  development
and/or  operation of such infrastructure to the public in a more timely,
more efficient, or less costly fashion, thereby serving the public safe-
ty and welfare.
  It is the intent of this act, among other things, to encourage invest-
ment in the state by private entities that facilitates  the  development
and operation of public infrastructure.  Accordingly, public and private
entities  may have the greatest possible flexibility in contracting with
each other for the provision of the governmental services which are  the
subject of this act.
  S 2. The executive law is amended by adding a new article 14-A to read
as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08875-03-3

A. 8183                             2
              

                              ARTICLE 14-A
                      PUBLIC-PRIVATE PARTNERSHIP IN
                          PUBLIC INFRASTRUCTURE
SECTION 275.   DEFINITIONS.
        275-A. PUBLIC-PRIVATE PARTNERSHIP BOARD.
        276.   POWERS, RIGHTS, DUTIES AND LIMITATIONS OF PARTIES.
        277.   PROCUREMENT.
        278.   MULTIPLE PUBLIC ENTITIES AND SPECIAL PURPOSE VEHICLES.
        278-A. COMPREHENSIVE AGREEMENTS.
        279.   MATERIAL DEFAULT; REMEDIES.
        279-A. PUBLIC WORK.
        280.   CONSTRUCTION.
        281.   SEVERABILITY.
  S  275.  DEFINITIONS.    AS  USED IN THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  1. "AFFECTED  JURISDICTION"  MEANS  ANY  COUNTY,  CITY,  TOWN,  SCHOOL
DISTRICT  OR  VILLAGE  IN  WHICH  ALL  OR A PORTION OF QUALIFYING PUBLIC
INFRASTRUCTURE IS  LOCATED  AND  ANY  OTHER  RESPONSIBLE  PUBLIC  ENTITY
DIRECTLY AFFECTED BY THE QUALIFYING PUBLIC INFRASTRUCTURE.
  2. "BOARD" MEANS THE PUBLIC-PRIVATE PARTNERSHIP BOARD.
  3. "COMPREHENSIVE AGREEMENT" MEANS THE COMPREHENSIVE AGREEMENT BETWEEN
THE PRIVATE ENTITY AND THE LEAD PUBLIC ENTITY.
  4.  "INFRASTRUCTURE"  MEANS PHYSICAL AND ORGANIZATIONAL STRUCTURES AND
FACILITIES NECESSARY FOR THE OPERATION OF A PUBLIC ENTITY.
  5. "INTERIM AGREEMENT" MEANS THE INTERIM AGREEMENT, INCLUDING A  MEMO-
RANDUM  OF  UNDERSTANDING  OR BINDING PRELIMINARY AGREEMENT, THAT MAY BE
ENTERED INTO BETWEEN THE PRIVATE  ENTITY  AND  THE  LEAD  PUBLIC  ENTITY
PURSUANT TO SECTION TWO HUNDRED SEVENTY-SEVEN OF THIS ARTICLE.
  6. "LEAD PUBLIC ENTITY" MEANS A PUBLIC ENTITY, INCLUDING LOCAL GOVERN-
MENTS  AND  REGIONAL  AUTHORITIES,  THAT HAS THE POWER TO DEVELOP AND/OR
OPERATE THE QUALIFYING PUBLIC INFRASTRUCTURE.
  7. "MATERIAL DEFAULT" MEANS ANY DEFAULT BY THE PRIVATE ENTITY  IN  THE
PERFORMANCE  OF  ITS DUTIES UNDER THE COMPREHENSIVE OR INTERIM AGREEMENT
THAT JEOPARDIZES ADEQUATE SERVICE TO THE PUBLIC FROM  QUALIFYING  PUBLIC
INFRASTRUCTURE  AND  REMAINS UNREMEDIED AFTER THE LEAD PUBLIC ENTITY HAS
PROVIDED NOTICE TO THE PRIVATE ENTITY AND A REASONABLE CURE  PERIOD  HAS
ELAPSED.
  8.  "PRIVATE  ENTITY"  MEANS ANY NATURAL PERSON, CORPORATION, PARTNER-
SHIP, LIMITED LIABILITY COMPANY INCLUDING  A  SPECIAL  PURPOSE  VEHICLE,
NOT-FOR-PROFIT CORPORATION OR OTHER BUSINESS ENTITY.
  9.  "PUBLIC ENTITY" MEANS THE STATE AND ANY AGENCY OR AUTHORITY THERE-
OF, ANY COUNTY, CITY, TOWN, VILLAGE OR SCHOOL  DISTRICT  AND  ANY  OTHER
POLITICAL  SUBDIVISION, AGENCY OR AUTHORITY OF ANY OF THE FOREGOING, BUT
SHALL NOT INCLUDE ANY MUNICIPAL PUBLIC UTILITY.
  10. "PUBLIC-PRIVATE PARTNERSHIP" MEANS THE PROVISION OF A  SERVICE  OR
CONSTRUCTION  AND/OR  OPERATION OF PUBLIC INFRASTRUCTURE WHICH IS FUNDED
AND OPERATED THROUGH A PARTNERSHIP OF A  PUBLIC  ENTITY  AND  A  PRIVATE
ENTITY OR PRIVATE ENTITIES.
  11.  "QUALIFYING PUBLIC INFRASTRUCTURE" MEANS INFRASTRUCTURE DEVELOPED
AND/OR OPERATED BY A PRIVATE ENTITY PURSUANT TO THIS ARTICLE.
  12. "REVENUES" MEANS ALL REVENUES,  INCLUDING,  BUT  NOT  LIMITED  TO,
INCOME,  EARNINGS,  USER  FEES,  LEASE  PAYMENTS,  ALLOCATIONS, FEDERAL,
STATE, REGIONAL AND LOCAL APPROPRIATIONS OR THE APPROPRIATIONS OR  OTHER
FUNDS AVAILABLE TO ANY POLITICAL SUBDIVISION, AUTHORITY OR INSTRUMENTAL-
ITY  THEREOF,  BOND PROCEEDS, EQUITY INVESTMENTS AND/OR SERVICE PAYMENTS
ARISING OUT OF OR IN CONNECTION WITH SUPPORTING THE  DEVELOPMENT  AND/OR

A. 8183                             3

OPERATION  OF  A  QUALIFYING  PUBLIC CAPITAL FACILITY, INCLUDING WITHOUT
LIMITATION, MONEY RECEIVED AS GRANTS OR OTHERWISE FROM THE UNITED STATES
OF AMERICA, FROM ANY PUBLIC ENTITY, OR FROM ANY AGENCY OR INSTRUMENTALI-
TY OF THE FOREGOING IN AID OF SUCH FACILITY.
  13. "SPECIAL PURPOSE VEHICLE" MEANS A LIMITED LIABILITY COMPANY FORMED
FOR  THE PURPOSE SPECIFIED IN SUBDIVISION (M) OF SECTION TWO HUNDRED TWO
OF THE LIMITED LIABILITY COMPANY LAW.
  S 275-A. PUBLIC-PRIVATE PARTNERSHIP BOARD. 1. THERE  SHALL  BE  ESTAB-
LISHED  A PUBLIC-PRIVATE PARTNERSHIP BOARD TO BE COMPOSED OF THE FOLLOW-
ING SEVEN MEMBERS:
  (A) THE COMMISSIONER OF TRANSPORTATION, WHO SHALL BE THE CHAIR OF  THE
BOARD.
  (B) TWO MEMBERS APPOINTED BY THE GOVERNOR;
  (C) TWO MEMBERS APPOINTED BY MAJORITY VOTE OF THE SENATE; AND
  (D) TWO MEMBERS APPOINTED BY MAJORITY VOTE OF THE ASSEMBLY.
  2.  THE MEMBERS OF THE BOARD APPOINTED BY THE GOVERNOR, THE SENATE AND
THE ASSEMBLY SHALL SERVE AT THE PLEASURE OF THEIR APPOINTING  AUTHORITY.
SUCH  APPOINTED  MEMBERS  SHALL HOLD NO OTHER PUBLIC OFFICE OR POSITION,
AND SHALL HAVE EXPERTISE IN PUBLIC FINANCE, LAW,  LAND  USE  AND  PUBLIC
PLANNING, CAPITAL CONSTRUCTION, OR PUBLIC ADMINISTRATION. ALL MEMBERS OF
THE BOARD SHALL BE RESIDENTS OF THE STATE.
  3. FOUR MEMBERS OF THE BOARD SHALL CONSTITUTE A QUORUM, AND ANY ACTION
BY THE BOARD SHALL REQUIRE A MAJORITY OF THE WHOLE NUMBER OF THE MEMBERS
OF THE BOARD. THE MEMBERS OF THE BOARD SHALL RECEIVE NO COMPENSATION FOR
THE  PERFORMANCE  OF THEIR DUTIES PURSUANT TO THIS SECTION, BUT SHALL BE
ENTITLED TO THEIR ACTUAL AND NECESSARY EXPENSES INCURRED  IN  PERFORMING
THEIR DUTIES PURSUANT TO THIS ARTICLE.
  4. ALL VACANCIES IN THE MEMBERSHIP OF THE BOARD SHALL BE FILLED WITHIN
THIRTY DAYS OF THE VACANCY.
  5. NO MEMBER OF THE BOARD SHALL, DIRECTLY OR INDIRECTLY, OWN, HAVE ANY
SIGNIFICANT  FINANCIAL  INTEREST  IN,  BE ASSOCIATED WITH OR RECEIVE ANY
FEE, COMMISSION, COMPENSATION OR ANY  FORM  OF  CONSIDERATION  FROM  ANY
PRIVATE  ENTITY  OR  SPECIAL  PURPOSE  VEHICLE  WHICH  IS SUBJECT TO THE
PROVISIONS OF THIS ARTICLE.
  6. THE BOARD SHALL HAVE THE FOLLOWING POWERS AND DUTIES:
  (A) MEET AS OFTEN AS NECESSARY BUT AT LEAST ANNUALLY;
  (B) ADOPT GUIDELINES ESTABLISHING THE  PROCEDURE  BY  WHICH  A  PUBLIC
ENTITY  MAY  SUBMIT  A  REQUEST FOR A PUBLIC INFRASTRUCTURE PROJECT OR A
PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE MAY SUBMIT AN UNSOLICITED PLAN
FOR A PUBLIC INFRASTRUCTURE PROJECT TO THE BOARD;
  (C) CONSULT WITH PERSONS AFFECTED BY  PROPOSED  PUBLIC  INFRASTRUCTURE
PROJECTS;
  (D) EVALUATE AND, WHERE THE BOARD FINDS THAT THE REQUESTS OR PLANS FOR
PUBLIC  INFRASTRUCTURE  PROJECTS  ARE IN THE BEST INTERESTS OF THE STATE
AND A PUBLIC ENTITY, APPROVE THE REQUEST OR PLANS FOR PUBLIC INFRASTRUC-
TURE PROJECTS. THE BOARD SHALL APPROVE A PROPOSED PUBLIC  INFRASTRUCTURE
PROJECT BY ADOPTING A RESOLUTION; AND
  (E) SUBMIT AN ANNUAL REPORT TO THE GOVERNOR, THE SENATE AND THE ASSEM-
BLY  DETAILING  ALL  PUBLIC INFRASTRUCTURE PROJECTS EVALUATED AND RESOL-
UTIONS ADOPTED.
  S 276. POWERS, RIGHTS, DUTIES AND  LIMITATIONS  OF  PARTIES.  1.  REAL
PROPERTY  DEVELOPED,  OPERATED  OR  HELD  BY  A  PRIVATE PARTNER UNDER A
COMPREHENSIVE OR INTERIM AGREEMENT SHALL BE  EXEMPT  FROM  ANY  AND  ALL
MUNICIPAL  AND  SCHOOL  DISTRICT AD VALOREM AND REAL PROPERTY TAXES THAT
OTHERWISE MIGHT BE APPLICABLE.

A. 8183                             4

  2. THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE SHALL HAVE ALL POWERS
GRANTED BY LAW TO A PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE HAVING THE
SAME FORM OF ORGANIZATION AS THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHI-
CLE AND SHALL HAVE THE POWER TO DEVELOP AND/OR  OPERATE  THE  QUALIFYING
PUBLIC INFRASTRUCTURE.
  3.  THE  PRIVATE  ENTITY  OR SPECIAL PURPOSE VEHICLE MAY OWN, LEASE OR
ACQUIRE ANY OTHER RIGHT TO USE OR DEVELOP  AND  OPERATE  THE  QUALIFYING
PUBLIC INFRASTRUCTURE.
  4.  SUBJECT  TO  APPLICABLE PERMIT REQUIREMENTS, THE PRIVATE ENTITY OR
SPECIAL PURPOSE VEHICLE SHALL HAVE THE AUTHORITY TO CROSS ANY  CANAL  OR
NAVIGABLE WATERS SO LONG AS THE CROSSING DOES NOT UNREASONABLY INTERFERE
WITH THEN CURRENT NAVIGATION AND USE OF SUCH WATERWAY.
  5. EVERY PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE SHALL:
  (A)  DEVELOP  AND/OR OPERATE THE QUALIFYING PUBLIC INFRASTRUCTURE IN A
MANNER THAT MEETS THE STANDARDS OF THE LEAD  PUBLIC  ENTITY  FOR  PUBLIC
INFRASTRUCTURE  OPERATED  AND MAINTAINED BY SUCH LEAD PUBLIC ENTITY, ALL
IN ACCORDANCE WITH THE PROVISIONS OF THE COMPREHENSIVE AGREEMENT OR  THE
INTERIM AGREEMENT;
  (B)  KEEP  THE  QUALIFYING  PUBLIC  INFRASTRUCTURE OPEN FOR USE BY THE
MEMBERS OF THE PUBLIC IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE
COMPREHENSIVE OR  INTERIM  AGREEMENT  AFTER  ITS  INITIAL  OPENING  UPON
PAYMENT OF THE APPLICABLE USER FEES OR RENTS, PROVIDED THAT THE QUALIFY-
ING  PUBLIC INFRASTRUCTURE MAY BE TEMPORARILY CLOSED BECAUSE OF EMERGEN-
CIES OR, WITH THE CONSENT OF THE LEAD  PUBLIC  ENTITY,  TO  PROTECT  THE
SAFETY  OF  THE  PUBLIC  OR  FOR  REASONABLE CONSTRUCTION OR MAINTENANCE
PROCEDURES;
  (C) MAINTAIN OR PROVIDE BY CONTRACT FOR THE MAINTENANCE OF THE  QUALI-
FYING PUBLIC INFRASTRUCTURE; AND
  (D)  COMPLY WITH THE PROVISIONS OF THE COMPREHENSIVE OR INTERIM AGREE-
MENT AND ANY SERVICE CONTRACT.
  6. NOTWITHSTANDING ANY PROVISION OF LAW TO  THE  CONTRARY,  FOR  EVERY
INTERIM AND COMPREHENSIVE AGREEMENT THE LEAD PUBLIC ENTITY SHALL ENFORCE
THE  TECHNICAL  AND PROFESSIONAL STANDARDS AND SPECIFICATIONS, INCLUDING
STANDARDS AND SPECIFICATIONS FOR PERFORMANCE OR OUTCOMES RELATED TO SUCH
AGREEMENT.
  7. THE LEAD PUBLIC ENTITY MAY EXERCISE THE POWER OF EMINENT DOMAIN  TO
ACQUIRE  REAL  PROPERTY  RIGHTS OF WAY AND OTHER RIGHTS IN REAL PROPERTY
FOR PUBLIC INFRASTRUCTURE THAT ARE NECESSARY TO DEVELOP, OPERATE OR HOLD
QUALIFYING PUBLIC  INFRASTRUCTURE  UNDER  THIS  ARTICLE,  REGARDLESS  OF
WHETHER THE REAL PROPERTY WILL BE OWNED IN FEE SIMPLE BY THE LEAD PUBLIC
ENTITY OR ANOTHER PUBLIC ENTITY, OR WHETHER SUCH PROPERTY WILL BE LEASED
TO  THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE TO USE, LEASE OR OPER-
ATE FOR ITS BUSINESS PURPOSES IN CONNECTION WITH  THE  COMPREHENSIVE  OR
INTERIM AGREEMENT.
  8.  ANY  PUBLIC  ENTITY MAY DEDICATE ANY PROPERTY INTEREST THAT IT HAS
FOR PUBLIC USE AS QUALIFIED PUBLIC INFRASTRUCTURE IF IT  FINDS  THAT  SO
DOING  WILL SERVE THE PUBLIC PURPOSE OF THIS ARTICLE. IN CONNECTION WITH
SUCH DEDICATION, A PUBLIC ENTITY MAY CONVEY ANY PROPERTY  INTEREST  THAT
IT  HAS, SUBJECT TO THE CONDITIONS IMPOSED BY LAW GOVERNING SUCH CONVEY-
ANCES, TO THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE, SUBJECT TO  THE
PROVISIONS OF THIS ARTICLE, FOR SUCH CONSIDERATION AS SUCH PUBLIC ENTITY
MAY  DETERMINE.  THE  AFOREMENTIONED  CONSIDERATION MAY INCLUDE, WITHOUT
LIMITATION, THE AGREEMENT OF THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHI-
CLE TO DEVELOP AND/OR OPERATE THE QUALIFYING PUBLIC INFRASTRUCTURE.  THE
PROPERTY  INTERESTS  THAT  THE  PUBLIC  ENTITY MAY CONVEY TO THE PRIVATE
ENTITY OR SPECIAL PURPOSE VEHICLE IN CONNECTION WITH A DEDICATION  UNDER

A. 8183                             5

THIS  SECTION  MAY INCLUDE LICENSES, FRANCHISES, EASEMENTS, CONCESSIONS,
OR ANY OTHER RIGHT OR INTEREST THE PUBLIC ENTITY DEEMS APPROPRIATE. SUCH
PROPERTY INTEREST INCLUDING, BUT NOT LIMITED TO, A LEASEHOLD INTEREST IN
AND/OR  RIGHTS  TO USE REAL PROPERTY COMPOSING PART OF QUALIFYING PUBLIC
INFRASTRUCTURE, SHALL BE  CONSIDERED  PROPERTY  INDIRECTLY  OWNED  BY  A
PUBLIC ENTITY.
  9.  NO  PUBLIC  ENTITY  SHALL  ENTER  INTO AN INTERIM OR COMPREHENSIVE
AGREEMENT WITH ANY PRIVATE ENTITY OR SPECIAL PURPOSE  VEHICLE  WHICH  IS
CONTROLLED  BY A FOREIGN GOVERNMENT OR BY A POLITICAL SUBDIVISION THERE-
OF, OR WHICH IS AN AGENCY OF ANY SUCH GOVERNMENT OR SUBDIVISION IF  SUCH
PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE IS ENTITLED TO CLAIM SOVEREIGN
IMMUNITY  AS A RESULT OF SUCH CONTROL AND SUCH PRIVATE ENTITY OR SPECIAL
PURPOSE VEHICLE HAS NOT WAIVED THE SOVEREIGN IMMUNITY.
  S 277. PROCUREMENT. 1. THE LEAD PUBLIC ENTITY IS AUTHORIZED  TO  ENTER
INTO  INTERIM AND COMPREHENSIVE AGREEMENTS FOR QUALIFYING PUBLIC INFRAS-
TRUCTURE PURSUANT TO THIS ARTICLE.
  2. EVERY INTERIM AND COMPREHENSIVE AGREEMENT  AUTHORIZED  PURSUANT  TO
THIS  ARTICLE SHALL BE IN SUCH FORM AND INCLUDE SUCH CONTENT AS SHALL BE
PROVIDED IN RULES AND REGULATIONS RELATING THERETO,  AS  PROMULGATED  BY
THE  BOARD,  AND  EACH  SUCH  AGREEMENT  SHALL  BE SUBJECT TO REVIEW AND
APPROVAL OR REJECTION BY  THE  BOARD.    FURTHERMORE,  THE  BOARD  SHALL
PROMULGATE AND IMPLEMENT RULES AND REGULATIONS REQUIRING PUBLIC ENTITIES
TO  ESTABLISH  AND  SUBMIT TO THE BOARD LISTS AND DESCRIPTIONS OF PUBLIC
INFRASTRUCTURE PROJECTS WHICH SUCH ENTITIES ARE CONSIDERING FOR DEVELOP-
MENT AND/OR OPERATION PURSUANT TO THIS ARTICLE.   SUCH RULES  AND  REGU-
LATIONS SHALL REQUIRE EVERY PROPOSED PUBLIC INFRASTRUCTURE PROJECT TO BE
SUBMITTED TO THE BOARD FOR A DETERMINATION OF WHETHER SUCH PROJECT QUAL-
IFIES  PURSUANT  TO  THIS  ARTICLE.  EACH PROPOSED PUBLIC INFRASTRUCTURE
FOUND BY THE BOARD TO BE SO QUALIFIED SHALL BE POSTED ON THE  DEPARTMENT
OF  AUDIT  AND  CONTROL INTERNET WEBSITE AS QUALIFIED PUBLIC INFRASTRUC-
TURE. IN THE EVENT A PROPOSED PUBLIC INFRASTRUCTURE PROJECT IS  REJECTED
BY  THE BOARD, SUCH DETERMINATION SHALL BE SUBJECT TO REVIEW PURSUANT TO
ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
  3. THE LEAD PUBLIC ENTITY IS AUTHORIZED TO PROCURE A PRIVATE ENTITY OR
SPECIAL PURPOSE VEHICLE AND AWARD PUBLIC-PRIVATE PARTNERSHIPS UNDER THIS
ARTICLE BY SOLICITING, RECEIVING, CONSIDERING, EVALUATING AND  ACCEPTING
PROPOSALS FOR A PUBLIC-PRIVATE PARTNERSHIP.
  4.  IN  SOLICITING  AND  SELECTING  A PRIVATE PARTNER, THE LEAD PUBLIC
ENTITY SHALL USE ANY OF THE FOLLOWING:
  (A) CALLS FOR PROJECT PROPOSALS, WHEREBY THE PUBLIC SPONSOR  DESCRIBES
THE  PUBLIC  INFRASTRUCTURE  THAT  PRIVATE  ENTITIES AND SPECIAL PURPOSE
VEHICLES ARE INVITED TO SUBMIT PROPOSALS TO DEVELOP VIA SEALED BIDDING;
  (B) IF ADVANTAGEOUS TO THE LEAD PUBLIC ENTITY AND THE PUBLIC BASED  ON
THE  PROBABLE  SCOPE,  COMPLEXITY  AND  URGENCY  OF  THE  PROJECT, OR AN
INCREASE IN FUNDING THAT WOULD BE AVAILABLE, SOLICITATIONS USING,  WITH-
OUT  LIMITATION, REQUESTS FOR QUALIFICATIONS, SHORT-LISTING OF QUALIFIED
PROPOSERS, REQUESTS FOR PROPOSALS, NEGOTIATIONS, BEST AND FINAL  OFFERS;
AND
  (C)  UNSOLICITED PROPOSALS, PROVIDED THAT IF THE PUBLIC SPONSOR DETER-
MINES THERE IS SUFFICIENT MERIT  TO  PURSUE  ANY  UNSOLICITED  PROPOSAL,
REASONABLE  OPPORTUNITY  FOR  OTHER PRIVATE ENTITIES AND SPECIAL PURPOSE
VEHICLES TO SUBMIT COMPETING PROPOSALS FOR  CONSIDERATION  AND  POSSIBLE
CONTRACT AWARD IS PROVIDED.
  5.  THE  LEAD  PUBLIC  ENTITY SHALL SELECT A PRIVATE ENTITY OR SPECIAL
PURPOSE VEHICLE, OR ENTITIES OR VEHICLES FOR A  PUBLIC-PRIVATE  PARTNER-
SHIP  ON  A  COMPETITIVE  BASIS.   THE PROVISIONS OF ARTICLE NINE OF THE

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STATE FINANCE LAW AND ARTICLE FIVE-A OF THE GENERAL MUNICIPAL LAW  SHALL
NOT APPLY TO CONTRACTS ISSUED PURSUANT TO THIS ARTICLE.
  6. THE LEAD PUBLIC ENTITY SHALL NOT BE REQUIRED TO SELECT THE PROPOSAL
WITH  THE  LOWEST  PRICE  OFFER, BUT MAY CONSIDER PRICE AS ONE FACTOR IN
EVALUATING THE PROPOSALS RECEIVED. IF THE LEAD PUBLIC ENTITY  DETERMINES
TO  CONSIDER OTHER FACTORS IN EVALUATING AND SELECTING A BID OR PROPOSAL
TO ENTER INTO A PUBLIC-PRIVATE INITIATIVE, THEN SUCH FACTORS SHALL BE:
  (A) THE ABILITY OF THE PUBLIC INFRASTRUCTURE TO RELIEVE THE BURDEN  OF
REAL  PROPERTY  TAXATION,  CREATE  PRIVATE  SECTOR  JOBS, ATTRACT GLOBAL
ECONOMIC DEVELOPMENT, CREATE OPPORTUNITIES FOR SMALL, MINORITY-OWNED AND
WOMEN-OWNED BUSINESSES, INCREASE CAPACITY AND PROMOTE ECONOMIC GROWTH;
  (B) THE EXTENT THAT THE PRIVATE ENTITY'S OR SPECIAL PURPOSE  VEHICLE'S
PROPOSAL ADDRESSES THE NEEDS OF THE LEAD PUBLIC ENTITY;
  (C) THE PROPOSED COST OF AND FINANCIAL PLAN FOR THE PUBLIC INFRASTRUC-
TURE;
  (D)  THE  GENERAL  REPUTATION, QUALIFICATIONS, INDUSTRY EXPERIENCE AND
FINANCIAL CAPACITY OF THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE;
  (E) THE PROPOSED DESIGN,  OPERATION  AND  FEASIBILITY  OF  THE  PUBLIC
INFRASTRUCTURE;
  (F) COMMENTS FROM LOCAL CITIZENS AND AFFECTED JURISDICTIONS;
  (G) BENEFITS TO THE PUBLIC AND THE AFFECTED PUBLIC INFRASTRUCTURE;
  (H)  THE  SAFETY RECORD OF THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHI-
CLE; AND
  (I) ANY OTHER CRITERIA THAT THE LEAD PUBLIC ENTITY CONSIDERS APPROPRI-
ATE.
  7. THE LEAD PUBLIC ENTITY MAY SELECT  MULTIPLE  PRIVATE  ENTITIES  AND
SPECIAL  PURPOSE VEHICLES WITH WHICH TO ENTER A COMPREHENSIVE OR INTERIM
AGREEMENT FOR QUALIFYING PUBLIC INFRASTRUCTURE IF IT IS  IN  THE  PUBLIC
INTEREST TO DO SO.
  8.  ANY MATERIALS OR DATA SUBMITTED TO, MADE AVAILABLE TO, OR RECEIVED
BY THE LEAD PUBLIC ENTITY, TO THE  EXTENT  THAT  THE  MATERIAL  OR  DATA
CONSIST  OF  TRADE SECRETS, AS DETERMINED PURSUANT TO SUBDIVISION TWO OF
SECTION EIGHTY-SEVEN OF THE PUBLIC OFFICERS LAW,  ARE  CONFIDENTIAL  AND
ARE  NOT  PUBLIC  RECORDS.    FINANCIAL INFORMATION RECEIVED BY THE LEAD
PUBLIC ENTITY THAT IS RELATED TO A PROPOSAL IS CONFIDENTIAL  AND  NOT  A
PUBLIC  RECORD  UNTIL  SUCH  TIME  AS  A  PROPOSAL IS SELECTED. PRIOR TO
SUBMISSION OF A SOLICITED PROPOSAL, A PRIVATE ENTITY OR SPECIAL  PURPOSE
VEHICLE  MAY REQUEST A REVIEW BY THE LEAD PUBLIC ENTITY THAT THE PRIVATE
ENTITY OR SPECIAL PURPOSE VEHICLE HAS  IDENTIFIED  AS  CONFIDENTIAL,  TO
DETERMINE  WHETHER SUCH INFORMATION WOULD BE SUBJECT TO DISCLOSURE UNDER
ARTICLE SIX OF THE PUBLIC OFFICERS LAW.
  9. (A) THE LEAD PUBLIC ENTITY  MAY  RECEIVE,  CONSIDER,  EVALUATE  AND
ACCEPT  AN  UNSOLICITED PROPOSAL FOR A PUBLIC-PRIVATE PARTNERSHIP IF THE
PROPOSAL MEETS ALL OF THE FOLLOWING:
  (1) ADDRESSES THE NEEDS IDENTIFIED BY THE PUBLIC ENTITY;
  (2) IS THE INDEPENDENT WORK PRODUCT OF THE PROPOSER;
  (3) BENEFITS THE PUBLIC;
  (4) IS PREPARED WITHOUT LEAD PUBLIC ENTITY SUPERVISION; AND
  (5) INCLUDES SUFFICIENT DETAIL AND INFORMATION  FOR  THE  LEAD  PUBLIC
ENTITY TO EVALUATE THE PROPOSAL IN AN OBJECTIVE AND TIMELY MANNER.
  (B)  ANY PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE REQUESTING APPROVAL
FROM OR SUBMITTING A PROPOSAL TO A LEAD PUBLIC ENTITY SHALL NOTIFY  EACH
AFFECTED JURISDICTION BY FURNISHING A COPY OF ITS REQUEST OR PROPOSAL TO
EACH  AFFECTED  JURISDICTION  WITHIN  THIRTY  DAYS  OF  SUCH  REQUEST OR
SUBMISSION.

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  EACH AFFECTED JURISDICTION THAT IS NOT A LEAD PUBLIC  ENTITY  FOR  THE
RESPECTIVE  QUALIFYING  PUBLIC  INFRASTRUCTURE  SHALL, WITHIN SIXTY DAYS
AFTER RECEIVING A REQUEST FOR COMMENTS  FROM  THE  LEAD  PUBLIC  ENTITY,
SUBMIT  ANY  COMMENTS  IT  MAY  HAVE  IN  WRITING ON THE PROPOSED PUBLIC
INFRASTRUCTURE  TO  THE  LEAD  PUBLIC  ENTITY AND INDICATING WHETHER THE
FACILITY WILL ADDRESS THE NEEDS OF THE PUBLIC ENTITY.
  (C) WITHIN NINETY DAYS AFTER RECEIVING AN  UNSOLICITED  PROPOSAL,  THE
LEAD PUBLIC ENTITY SHALL UNDERTAKE A PRELIMINARY EVALUATION OF THE UNSO-
LICITED PROPOSAL TO DETERMINE IF THE PROPOSAL COMPLIES WITH THE REQUIRE-
MENTS  OF  PARAGRAPH  (A)  OF THIS SUBDIVISION AND HOLD A PUBLIC HEARING
THEREON PURSUANT TO THE PROVISIONS OF THE GENERAL MUNICIPAL LAW.
  (D) IF THE UNSOLICITED PROPOSAL DOES NOT COMPLY WITH PARAGRAPH (A)  OF
THIS SUBDIVISION, THE LEAD PUBLIC ENTITY SHALL RETURN THE PROPOSAL WITH-
OUT FURTHER ACTION.
  (E)  IF  THE  UNSOLICITED PROPOSAL COMPLIES WITH PARAGRAPH (A) OF THIS
SUBDIVISION, THE  LEAD  PUBLIC  ENTITY  MAY  CONTINUE  TO  EVALUATE  THE
PROPOSAL IN ACCORDANCE WITH THIS SECTION.
  (1)  IF  THE  UNSOLICITED PROPOSAL COMPLIES WITH PARAGRAPH (A) OF THIS
SUBDIVISION, THE LEAD PUBLIC ENTITY SHALL ADVERTISE FOR  NOT  LESS  THAN
THIRTY  DAYS  THE  UNSOLICITED  PROPOSAL  FOR  THE  PURPOSE OF RECEIVING
COMPETITIVE PROPOSALS FOR THE PROPOSED PUBLIC INFRASTRUCTURE.
  (2) THE ADVERTISEMENT SHALL OUTLINE THE GENERAL NATURE  AND  SCOPE  OF
THE  UNSOLICITED  PROPOSAL, INCLUDING THE LOCATION OF THE PUBLIC INFRAS-
TRUCTURE AND THE WORK TO BE PERFORMED  ON  OR  IN  CONNECTION  WITH  THE
PUBLIC  INFRASTRUCTURE AND SHALL SPECIFY AN ADDRESS TO WHICH A COMPETING
PROPOSAL MAY BE SUBMITTED.
  (3) THE ADVERTISEMENT SHALL SPECIFY A REASONABLE TIME PERIOD BY  WHICH
COMPETITORS MUST SUBMIT A COMPETING PROPOSAL TO THE LEAD PUBLIC ENTITY.
  (F)  UPON  RECEIPT  OF ANY COMPETING PROPOSALS, THE LEAD PUBLIC ENTITY
SHALL DO ALL OF THE FOLLOWING:
  (1) DETERMINE IF ANY COMPETING PROPOSAL IS COMPARABLE  IN  NATURE  AND
SCOPE TO THE ORIGINAL UNSOLICITED PROPOSAL;
  (2)  EVALUATE  THE  ORIGINAL  UNSOLICITED  PROPOSAL AND ANY COMPARABLE
COMPETING PROPOSAL; AND
  (3) CONDUCT ANY GOOD FAITH DISCUSSIONS AND, IF NECESSARY, ANY  NEGOTI-
ATIONS CONCERNING EACH QUALIFIED PROPOSAL.
  (G)  THE LEAD PUBLIC ENTITY SHALL EVALUATE AN UNSOLICITED PROPOSAL AND
ANY COMPARABLE COMPETING PROPOSAL USING THE FOLLOWING FACTORS:
  (1) INNOVATIVE METHODS, APPROACHES OR  CONCEPTS  DEMONSTRATED  BY  THE
PROPOSAL;
  (2) SCIENTIFIC, TECHNICAL OR SOCIOECONOMIC MERITS OF THE PROPOSAL;
  (3) POTENTIAL CONTRIBUTION OF THE PROPOSAL TO THE LEAD PUBLIC ENTITY'S
MISSION;
  (4)  CAPABILITIES, RELATED EXPERIENCE, FACILITIES OR TECHNIQUES OF THE
PRIVATE ENTITY, SPECIAL PURPOSE VEHICLE OR UNIQUE COMBINATIONS OF  THESE
QUALITIES  THAT  ARE  INTEGRAL FACTORS FOR ACHIEVING THE PROPOSAL OBJEC-
TIVES;
  (5) QUALIFICATIONS, CAPABILITIES, AND EXPERIENCE OF THE PROPOSED PRIN-
CIPAL INVESTOR, TEAM LEADER, OR  KEY  PERSONNEL,  WHO  ARE  CRITICAL  TO
ACHIEVING THE PROPOSAL OBJECTIVES;
  (6) HOW THE PROPOSAL BENEFITS THE PUBLIC; AND
  (7) ANY OTHER FACTORS APPROPRIATE TO A PARTICULAR PROPOSAL.
  (H)  AFTER  EVALUATING  THE  UNSOLICITED  PROPOSAL  AND  ANY COMPETING
PROPOSALS, THE LEAD PUBLIC ENTITY MAY DO ANY OF THE FOLLOWING:
  (1)  ACCEPT  THE  UNSOLICITED  PROPOSAL  AND  REJECT   ANY   COMPETING
PROPOSALS;

A. 8183                             8

  (2)  REJECT THE UNSOLICITED PROPOSAL AND ACCEPT A COMPARABLE COMPETING
PROPOSAL IF THE  LEAD  PUBLIC  ENTITY  DETERMINES  THAT  THE  COMPARABLE
COMPETING PROPOSAL IS THE MOST ADVANTAGEOUS TO THE STATE;
  (3)  ACCEPT  BOTH  AN UNSOLICITED PROPOSAL AND A COMPETING PROPOSAL IF
ACCEPTING BOTH PROPOSALS IS ADVANTAGEOUS TO THE STATE; OR
  (4) REJECT THE UNSOLICITED PROPOSAL AND ANY COMPETING PROPOSALS.
  (I) THE LEAD PUBLIC ENTITY SHALL CHARGE A REASONABLE FEE FOR THE EVAL-
UATION OF AN  UNSOLICITED  PROJECT  PROPOSAL  AND  A  COMPETING  PROJECT
PROPOSAL.  FOR  ANY  PROJECT WITH AN ESTIMATED CONSTRUCTION COST OF OVER
FIFTY MILLION DOLLARS, THE LEAD PUBLIC ENTITY  ALSO  SHALL  REQUIRE  THE
PRIVATE  ENTITY TO PAY THE COSTS FOR AN INDEPENDENT AUDIT OF ANY AND ALL
COST ESTIMATES ASSOCIATED WITH THE PRIVATE ENTITY'S OR  SPECIAL  PURPOSE
VEHICLE'S  PROPOSAL,  AS WELL AS A REVIEW OF ALL PUBLIC COSTS AND POTEN-
TIAL LIABILITIES TO WHICH TAXPAYERS COULD BE EXPOSED (INCLUDING IMPROVE-
MENTS TO OTHER PUBLIC INFRASTRUCTURE THAT MAY BE NEEDED AS A  RESULT  OF
THE  PROPOSAL,  FAILURE BY THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE
TO REIMBURSE THE LEAD PUBLIC ENTITY FOR SERVICES PROVIDED, AND POTENTIAL
RISK AND LIABILITY IN THE EVENT THE PRIVATE ENTITY  OR  SPECIAL  PURPOSE
VEHICLE  DEFAULTS  ON THE COMPREHENSIVE AGREEMENT OR ON BONDS ISSUED FOR
THE PROJECT). THIS INDEPENDENT AUDIT SHALL BE CONDUCTED BY AN  INDEPEND-
ENT CONSULTANT SELECTED BY THE LEAD PUBLIC ENTITY, AND ALL SUCH INFORMA-
TION FROM SUCH REVIEW SHALL BE FULLY DISCLOSED.
  10. THE LEAD PUBLIC ENTITY IS AUTHORIZED TO PAY A STIPEND TO AN UNSUC-
CESSFUL BIDDER OR PROPOSER, IN AN AMOUNT AND ON THE TERMS AND CONDITIONS
DETERMINED BY THE LEAD PUBLIC ENTITY, IF:
  (A)  THE  LEAD  PUBLIC ENTITY CANCELS THE PROCUREMENT PRIOR TO THE DUE
DATE FOR PROPOSALS IN THE REQUEST FOR PROPOSALS; OR
  (B) THE UNSUCCESSFUL BIDDER OR PROPOSER SUBMITS  A  PROPOSAL  AND  THE
LEAD  PUBLIC  ENTITY  DETERMINES  THAT THE PROPOSAL IS RESPONSIVE TO THE
LEAD PUBLIC ENTITY'S REQUEST FOR PROPOSALS AND  MEETS  ALL  REQUIREMENTS
ESTABLISHED BY THE LEAD PUBLIC ENTITY FOR THE PROJECT.
  IN  EXCHANGE  FOR SUCH STIPEND, THE LEAD PUBLIC ENTITY MAY REQUIRE THE
UNSUCCESSFUL BIDDER OR PROPOSER TO GRANT TO THE LEAD PUBLIC  ENTITY  THE
RIGHT  TO USE ANY WORK PRODUCT CONTAINED IN THE UNSUCCESSFUL BIDDER'S OR
PROPOSER'S PROPOSAL OR, IF THE LEAD PUBLIC ENTITY CANCELS  THE  PROCURE-
MENT  PRIOR  TO THE DUE DATE FOR PROPOSALS IN THE REQUEST FOR PROPOSALS,
ANY WORK PRODUCT DEVELOPED PRIOR TO  CANCELLATION,  INCLUDING  TECHNOLO-
GIES,  TECHNIQUES,  METHODS,  PROCESSES AND INFORMATION CONTAINED IN THE
PROJECT DESIGN.
  11. THE LEAD PUBLIC ENTITY MAY RETAIN, BY MEANS OF COMPETITIVE NEGOTI-
ATION IN ACCORDANCE WITH ARTICLE NINE OF THE STATE FINANCE LAW OR  ARTI-
CLE  FIVE-A  OF  THE  GENERAL  MUNICIPAL LAW, FINANCIAL, LEGAL AND OTHER
CONSULTANTS AND EXPERTS INSIDE AND OUTSIDE THE PUBLIC SECTOR  TO  ASSIST
IN  THE  PROCUREMENT, EVALUATION AND NEGOTIATION OF PUBLIC-PRIVATE PART-
NERSHIPS AND FOR THE DEVELOPMENT AND/OR OPERATION OF  QUALIFYING  PUBLIC
INFRASTRUCTURE UNDER THIS ARTICLE.
  12.  PRIOR  TO OR IN CONNECTION WITH THE NEGOTIATION OF THE COMPREHEN-
SIVE AGREEMENT, THE LEAD PUBLIC ENTITY, UPON THE APPROVAL OF THE  BOARD,
MAY  ENTER  INTO AN INTERIM AGREEMENT WITH THE PRIVATE ENTITY OR SPECIAL
PURPOSE VEHICLE PROPOSING THE DEVELOPMENT AND/OR OPERATION OF THE QUALI-
FYING PUBLIC INFRASTRUCTURE.  SUCH INTERIM AGREEMENT MAY:
  (A) PERMIT THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE  TO  COMMENCE
ACTIVITIES  FOR  WHICH  IT  MAY  BE COMPENSATED RELATING TO THE PROPOSED
QUALIFYING PUBLIC INFRASTRUCTURE, INCLUDING PROJECT PLANNING AND  DEVEL-
OPMENT,  ADVANCE RIGHT-OF-WAY ACQUISITION, DESIGN AND ENGINEERING, ENVI-
RONMENTAL ANALYSIS AND MITIGATION, SURVEY, CONDUCTING  REVENUE  STUDIES,

A. 8183                             9

AND ASCERTAINING THE AVAILABILITY OF FINANCING FOR THE PROPOSED FACILITY
OR FACILITIES;
  (B) ESTABLISH THE PROCESS AND TIMING OF THE NEGOTIATION OF THE COMPRE-
HENSIVE AGREEMENT; AND
  (C) CONTAIN ANY OTHER PROVISIONS RELATED TO ANY ASPECT OF THE DEVELOP-
MENT  AND/OR  OPERATION  OF  A QUALIFYING PUBLIC INFRASTRUCTURE THAT THE
PARTIES MAY DEEM APPROPRIATE.
  13. ANY LAWFUL SOURCE OF FUNDING AND FINANCING MAY BE UTILIZED FOR THE
DEVELOPMENT OR OPERATION OF QUALIFYING PUBLIC INFRASTRUCTURE UNDER  THIS
ARTICLE.
  14. THE LEAD PUBLIC ENTITY MAY ACCEPT FROM THE UNITED STATES OR ANY OF
ITS  AGENCIES SUCH FUNDS OR CREDIT ASSISTANCE AS ARE AVAILABLE TO IT FOR
CARRYING OUT THE PURPOSES OF THIS ARTICLE, WHETHER THE  FUNDS  ARE  MADE
AVAILABLE BY GRANT, LOAN OR OTHER FINANCING ARRANGEMENT. THE LEAD PUBLIC
ENTITY  MAY  ENTER  INTO SUCH AGREEMENTS AND OTHER ARRANGEMENTS WITH THE
UNITED STATES OR ANY OF ITS AGENCIES AS MAY  BE  NECESSARY,  PROPER  AND
CONVENIENT FOR CARRYING OUT THE PURPOSES OF THIS ARTICLE.
  15.  THE  LEAD  PUBLIC  ENTITY  MAY  ACCEPT FROM ANY SOURCE ANY GRANT,
DONATION, GIFT, OR OTHER FORM OF CONVEYANCE OF LAND, MONEY,  OTHER  REAL
OR  PERSONAL PROPERTY OR OTHER VALUABLE THING MADE TO THE PUBLIC SPONSOR
FOR CARRYING OUT THE PURPOSES OF THIS ARTICLE.
  16. EVERY PRIVATE ENTITY WHICH ENTERS INTO  AN  INTERIM  AGREEMENT  OR
COMPREHENSIVE AGREEMENT SHALL BE SUBJECT TO:
  (A)  THE  PROVISIONS  OF  THE LABOR LAW, INCLUDING SECTION TWO HUNDRED
TWENTY RELATING TO THE PAYMENT OF THE PREVAILING WAGE TO  EMPLOYEES  AND
OTHER WORKERS EMPLOYED IN THE COURSE OF SUCH AGREEMENT;
  (B)  THE PROVISIONS OF ARTICLE EIGHT OF THE ENVIRONMENTAL CONSERVATION
LAW;
  (C) THE PROVISIONS OF ARTICLE FIFTEEN-A OF THIS CHAPTER;
  (D) THE PROVISIONS OF ALL STATE AND FEDERAL LAWS PROHIBITING DISCRIMI-
NATION AND REQUIRING THE PROVISION OF EQUAL EMPLOYMENT OPPORTUNITY; AND
  (E) THE PROVISIONS OF ARTICLE SIX OF THE PUBLIC OFFICERS LAW.
  S 278. MULTIPLE PUBLIC ENTITIES AND SPECIAL PURPOSE VEHICLES.  1. IF A
PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE SUBMITS A PROPOSAL PURSUANT TO
SUBDIVISION FOUR OF SECTION TWO HUNDRED SEVENTY-SEVEN OF THIS ARTICLE TO
DEVELOP AND/OR OPERATE QUALIFYING PUBLIC INFRASTRUCTURE THAT MAY REQUIRE
APPROVAL BY MORE THAN ONE PUBLIC ENTITY AND/OR SPECIAL PURPOSE  VEHICLE,
REPRESENTATIVES  OF  EACH  OF  THE  AFFECTED PUBLIC ENTITIES AND SPECIAL
PURPOSE VEHICLES SHALL, PRIOR TO ACCEPTANCE OF  SUCH  PROPOSAL,  CONVENE
AND  DETERMINE  WHICH PUBLIC ENTITY SHALL SERVE AS THE COORDINATING LEAD
PUBLIC ENTITY. SUCH DETERMINATION SHALL OCCUR WITHIN SIXTY DAYS  OF  THE
RECEIPT OF A PROPOSAL BY THE RESPECTIVE PUBLIC ENTITIES.
  2.  IF  PUBLIC  ENTITIES  REQUEST  PROPOSALS FROM PRIVATE ENTITIES AND
SPECIAL PURPOSE VEHICLES FOR THE DEVELOPMENT AND/OR OPERATION OF  QUALI-
FYING  PUBLIC INFRASTRUCTURE PURSUANT TO SUBDIVISION FOUR OF SECTION TWO
HUNDRED SEVENTY-SEVEN OF THIS ARTICLE, THE DETERMINATION OF WHICH PUBLIC
ENTITY SHALL SERVE AS THE COORDINATING LEAD PUBLIC ENTITY SHALL BE  MADE
PRIOR TO ANY REQUEST FOR PROPOSALS.
  3.  ONCE  A DETERMINATION HAS BEEN MADE IN ACCORDANCE WITH SUBDIVISION
ONE OR TWO OF THIS SECTION, THE COORDINATING LEAD PUBLIC ENTITY AND  THE
PRIVATE  ENTITY  OR  SPECIAL PURPOSE VEHICLE SHALL PROCEED IN ACCORDANCE
WITH THIS ARTICLE.
  S 278-A. COMPREHENSIVE AGREEMENTS. 1. AFTER SELECTING A  SOLICITED  OR
UNSOLICITED  PROPOSAL  FOR  A PUBLIC-PRIVATE INITIATIVE, THE RESPONSIBLE
PUBLIC ENTITY, SUBJECT TO THE APPROVAL OF THE STATE  COMPTROLLER,  SHALL
ENTER  INTO A PUBLIC-PRIVATE AGREEMENT FOR QUALIFYING PUBLIC INFRASTRUC-

A. 8183                            10

TURE WITH THE SELECTED PRIVATE ENTITY, SPECIAL PURPOSE  VEHICLE  OR  ANY
CONFIGURATION  OF  PRIVATE  ENTITIES.  AN AFFECTED JURISDICTION MAY BE A
PARTY TO A COMPREHENSIVE  AGREEMENT  ENTERED  INTO  BY  THE  RESPONSIBLE
PUBLIC  ENTITY AND A SELECTED PRIVATE ENTITY, SPECIAL PURPOSE VEHICLE OR
COMBINATION OF PRIVATE ENTITIES.
  2. A COMPREHENSIVE AGREEMENT UNDER THIS SECTION SHALL PROVIDE FOR  ALL
OF THE FOLLOWING:
  (A)    PLANNING,    ACQUISITION,   FINANCING,   DEVELOPMENT,   DESIGN,
CONSTRUCTION,  RECONSTRUCTION,  REPLACEMENT,  IMPROVEMENT,  MAINTENANCE,
MANAGEMENT,  REPAIR,  LEASING  OR OPERATION OF QUALIFYING PUBLIC INFRAS-
TRUCTURE;
  (B) TERM OF THE COMPREHENSIVE AGREEMENT;
  (C) TYPE OF PROPERTY INTEREST, IF ANY, THE PRIVATE ENTITY  OR  SPECIAL
PURPOSE VEHICLE WILL HAVE IN THE QUALIFYING PUBLIC INFRASTRUCTURE;
  (D)  A  SPECIFIC  PLAN  TO ENSURE PROPER MAINTENANCE OF THE QUALIFYING
PUBLIC INFRASTRUCTURE THROUGHOUT THE TERM OF THE COMPREHENSIVE AGREEMENT
AND A RETURN OF THE INFRASTRUCTURE TO THE RESPONSIBLE PUBLIC ENTITY,  IF
APPLICABLE, IN GOOD CONDITION AND REPAIR;
  (E) WHETHER USER FEES OR RENTS WILL BE COLLECTED FOR USE OF THE QUALI-
FYING  PUBLIC  INFRASTRUCTURE  AND  THE BASIS BY WHICH SUCH USER FEES OR
RENTS SHALL BE DETERMINED AND MODIFIED;
  (F) MAINTENANCE OF A POLICY OR POLICIES OF PUBLIC LIABILITY  INSURANCE
(COPIES  OF  WHICH  SHALL  BE  FILED  WITH THE RESPONSIBLE PUBLIC ENTITY
ACCOMPANIED BY PROOFS OF COVERAGE) OR SELF-INSURANCE, EACH IN  FORM  AND
AMOUNT  SATISFACTORY  TO  THE  RESPONSIBLE  PUBLIC ENTITY AND REASONABLY
SUFFICIENT TO INSURE COVERAGE  OF  TORT  LIABILITY  TO  THE  PUBLIC  AND
EMPLOYEES AND TO ENABLE THE CONTINUED OPERATION OF THE QUALIFYING PUBLIC
INFRASTRUCTURE;
  (G)  COMPENSATION  TO  THE  PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE,
WHICH MAY  INCLUDE  A  REASONABLE  DEVELOPMENT  FEE,  SERVICE  PAYMENTS,
PAYMENTS BASED ON A REASONABLE MAXIMUM RATE OF RETURN ON INVESTMENT, AND
REIMBURSEMENT  OF  INVESTMENT  AND  DEVELOPMENT EXPENSES IN THE EVENT OF
TERMINATION FOR CONVENIENCE  BY  THE  RESPONSIBLE  PUBLIC  ENTITY.  SUCH
COMPENSATION  SHALL  TAKE  INTO ACCOUNT THE SYSTEM OF USER FEES OR RENTS
SPECIFIED IN THE COMPREHENSIVE AGREEMENT, AND AN ADJUSTMENT IN  CASE  OF
GAINS BY THE PRIVATE ENTITY ON ACCOUNT OF ANY REFINANCINGS;
  (H)  COMPLIANCE  WITH  APPLICABLE  FEDERAL,  STATE AND LOCAL LABOR AND
PUBLIC WORK LAWS;
  (I) GROUNDS FOR TERMINATION OF  THE  COMPREHENSIVE  AGREEMENT  BY  THE
RESPONSIBLE PUBLIC ENTITY, OR PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE;
  (J)  DISPOSITION  OF THE INFRASTRUCTURE UPON COMPLETION OF THE COMPRE-
HENSIVE AGREEMENT;
  (K) PROCEDURES FOR AMENDMENT OF THE COMPREHENSIVE AGREEMENT; AND
  (L) A DATE FOR THE ACQUISITION OF OR THE BEGINNING OF CONSTRUCTION  OF
OR IMPROVEMENTS TO THE QUALIFYING PUBLIC INFRASTRUCTURE. THE RESPONSIBLE
PUBLIC ENTITY MAY EXTEND SUCH DATE FROM TIME TO TIME.
  3.   AS DETERMINED BY THE STATE COMPTROLLER, A COMPREHENSIVE AGREEMENT
UNDER THIS SECTION SHALL PROVIDE FOR THE FOLLOWING:
  (A) REVIEW AND APPROVAL  BY  THE  RESPONSIBLE  PUBLIC  ENTITY  OF  THE
PRIVATE  ENTITY'S OR SPECIAL PURPOSE VEHICLE'S PLANS FOR THE DEVELOPMENT
AND OPERATION OF THE QUALIFYING PUBLIC INFRASTRUCTURE;
  (B) INSPECTION BY THE RESPONSIBLE PUBLIC ENTITY OF CONSTRUCTION OF  OR
IMPROVEMENTS TO THE QUALIFYING PUBLIC INFRASTRUCTURE;
  (C)  FILING  BY  THE  PRIVATE  ENTITY OR SPECIAL PURPOSE VEHICLE, ON A
PERIODIC BASIS, OF APPROPRIATE FINANCIAL STATEMENTS IN A FORM ACCEPTABLE
TO THE RESPONSIBLE PUBLIC ENTITY;

A. 8183                            11

  (D) FILING BY THE PRIVATE ENTITY OR  SPECIAL  PURPOSE  VEHICLE,  ON  A
PERIODIC  BASIS,  OF  REPORTS  IN  A  FORM ACCEPTABLE TO THE RESPONSIBLE
PUBLIC ENTITY;
  (E)  FINANCING  OBLIGATIONS  OF  THE PRIVATE ENTITY OR SPECIAL PURPOSE
VEHICLE AND THE RESPONSIBLE PUBLIC ENTITY;
  (F) APPORTIONMENT OF EXPENSES BETWEEN THE PRIVATE  ENTITY  OR  SPECIAL
PURPOSE VEHICLE AND THE RESPONSIBLE PUBLIC ENTITY;
  (G)  RIGHTS  AND DUTIES OF THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHI-
CLE, THE RESPONSIBLE PUBLIC ENTITY, AND OTHER STATE  AND  LOCAL  GOVERN-
MENTAL ENTITIES WITH RESPECT TO USE OF THE QUALIFYING PUBLIC INFRASTRUC-
TURE;
  (H) RIGHTS AND REMEDIES AVAILABLE IN THE EVENT OF DEFAULT OR DELAY;
  (I)  TERMS  AND CONDITIONS OF INDEMNIFICATION OF THE PRIVATE ENTITY OR
SPECIAL PURPOSE VEHICLE BY THE RESPONSIBLE PUBLIC ENTITY;
  (J) ASSIGNMENT, SUBCONTRACTING, OR OTHER  DELEGATION  OF  RESPONSIBIL-
ITIES OF THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE, OR THE RESPONSI-
BLE  PUBLIC ENTITY UNDER THE AGREEMENT TO THIRD PARTIES, INCLUDING OTHER
PRIVATE ENTITIES OR SPECIAL PURPOSE VEHICLES AND OTHER STATE AGENCIES;
  (K) SALE OR LEASE TO THE OPERATOR OF PRIVATE PROPERTY RELATED  TO  THE
QUALIFYING PUBLIC INFRASTRUCTURE;
  (L)  PROCEDURES  FOR  THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE TO
MAKE AND ENFORCE REASONABLE RULES TO THE SAME EXTENT THAT THE  RESPONSI-
BLE  PUBLIC  ENTITY MAY MAKE AND ENFORCE RULES WITH RESPECT TO A SIMILAR
PUBLIC INFRASTRUCTURE; AND
  (M) ENFORCEMENT AND OTHER POLICING ISSUES, INCLUDING ANY REIMBURSEMENT
BY THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE FOR SUCH SERVICES.
  4. THE COMPREHENSIVE AGREEMENT MAY PROVIDE THAT USER  FEES  AND  RENTS
SHALL  BE COLLECTED FOR USE OF THE QUALIFYING PUBLIC INFRASTRUCTURE. THE
PARTIES MAY AGREE THAT USER FEES AND RENTS MAY BE  SET  BY  THE  PRIVATE
ENTITY  OR SPECIAL PURPOSE VEHICLE, THE RESPONSIBLE PUBLIC ENTITY, OR BY
AGREEMENT OF THE PARTIES. A SCHEDULE OF THE CURRENT USER FEES AND  RENTS
SHALL BE MADE AVAILABLE BY THE PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE
TO ANY MEMBER OF THE PUBLIC ON REQUEST. USER FEES AND RENTS SHALL BE SET
AT  LEVELS  THAT  ARE  THE  SAME FOR PERSONS USING THE QUALIFYING PUBLIC
INFRASTRUCTURE UNDER LIKE CONDITIONS. USER FEES AND RENTS ESTABLISHED IN
THE COMPREHENSIVE AGREEMENT AS A SOURCE OF REVENUES MAY BE  IN  ADDITION
TO,  OR  IN  LIEU  OF, SERVICE PAYMENTS. A RESPONSIBLE PUBLIC ENTITY MAY
IMPOSE AND COLLECT USER FEES AND RENTS FROM USERS  OF  ELIGIBLE  INFRAS-
TRUCTURE  AND USE LAWFUL MEASURES TO ENFORCE SUCH CHARGES, AND AUTHORIZE
THE PRIVATE ENTITY, SPECIAL PURPOSE VEHICLE OR ANOTHER PUBLIC ENTITY  TO
IMPOSE,  COLLECT AND ENFORCE SUCH USER FEES AND RENTS TO THE SAME EXTENT
AS AVAILABLE TO THE RESPONSIBLE PUBLIC ENTITY.
  5. IN THE COMPREHENSIVE AGREEMENT, THE RESPONSIBLE PUBLIC  ENTITY  MAY
AGREE  TO  MAKE  GRANTS OR LOANS FOR THE DEVELOPMENT AND/OR OPERATION OF
THE QUALIFYING PUBLIC INFRASTRUCTURE FROM  TIME  TO  TIME  FROM  AMOUNTS
RECEIVED  FROM  THE  FEDERAL GOVERNMENT OR ANY AGENCY OR INSTRUMENTALITY
THEREOF.
  6. THE COMPREHENSIVE AGREEMENT SHALL INCORPORATE  THE  DUTIES  OF  THE
PRIVATE  ENTITY  OR  SPECIAL  PURPOSE VEHICLE UNDER THIS ARTICLE AND MAY
CONTAIN SUCH OTHER TERMS AND  CONDITIONS  THAT  THE  RESPONSIBLE  PUBLIC
ENTITY,  THE  STATE  COMPTROLLER  DETERMINES SERVE THE PUBLIC PURPOSE OF
THIS  ARTICLE.  WITHOUT  LIMITATION,  THE  COMPREHENSIVE  AGREEMENT  MAY
CONTAIN  PROVISIONS  UNDER WHICH THE RESPONSIBLE PUBLIC ENTITY AGREES TO
PROVIDE NOTICE OF DEFAULT AND CURE RIGHTS FOR THE BENEFIT OF THE PRIVATE
ENTITY OR SPECIAL PURPOSE VEHICLE AND THE PERSONS SPECIFIED  THEREIN  AS
PROVIDING  FINANCING  FOR  THE  QUALIFYING  PUBLIC INFRASTRUCTURE.   THE

A. 8183                            12

COMPREHENSIVE AGREEMENT MAY CONTAIN SUCH OTHER LAWFUL TERMS  AND  CONDI-
TIONS  TO  WHICH  THE  PRIVATE ENTITY OR SPECIAL PURPOSE VEHICLE AND THE
RESPONSIBLE PUBLIC ENTITY MUTUALLY AGREE, INCLUDING, WITHOUT LIMITATION,
PROVISIONS  REGARDING  UNAVOIDABLE  DELAYS OR PROVISIONS PROVIDING FOR A
LOAN OF PUBLIC FUNDS FOR THE DEVELOPMENT AND/OR OPERATION OF ONE OR MORE
QUALIFYING PUBLIC INFRASTRUCTURE.
  7. THE COMPREHENSIVE AGREEMENT SHALL PROVIDE FOR THE  DISTRIBUTION  OF
ANY  EARNINGS  IN  EXCESS OF THE MAXIMUM RATE OF RETURN AS NEGOTIATED IN
THE COMPREHENSIVE AGREEMENT.  WITHOUT LIMITATION, EXCESS EARNINGS MAY BE
DISTRIBUTED, AS DETERMINED BY THE BOARD, TO THE RESPONSIBLE PUBLIC ENTI-
TY, OR TO THE  PRIVATE  ENTITY  OR  SPECIAL  PURPOSE  VEHICLE  FOR  DEBT
REDUCTION OR THEY MAY BE SHARED WITH APPROPRIATE PUBLIC ENTITIES.
  8.  ANY CHANGES IN THE TERMS OF THE COMPREHENSIVE AGREEMENT, AS MAY BE
AGREED UPON BY THE PARTIES FROM TIME TO TIME,  SHALL  BE  ADDED  TO  THE
COMPREHENSIVE AGREEMENT BY WRITTEN AMENDMENT APPROVED BY THE BOARD.
  9.  THE COMPREHENSIVE AGREEMENT MAY PROVIDE FOR THE DEVELOPMENT AND/OR
OPERATION OF PHASES OR SEGMENTS OF THE QUALIFYING PUBLIC INFRASTRUCTURE.
  10. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE RESPONSIBLE PUBLIC
ENTITY MAY AGREE TO OR REQUIRE USE OF ARBITRATION OR  OTHER  ALTERNATIVE
DISPUTE RESOLUTION PROCEDURES TO RESOLVE DISPUTES WITH THE PRIVATE ENTI-
TY OR SPECIAL PURPOSE VEHICLE.
  S  279. MATERIAL DEFAULT; REMEDIES.  1. UPON THE OCCURRENCE AND DURING
THE CONTINUATION OF MATERIAL DEFAULT UNDER A  COMPREHENSIVE  OR  INTERIM
AGREEMENT, THE LEAD PUBLIC ENTITY MAY EXERCISE ANY OR ALL OF THE FOLLOW-
ING REMEDIES:
  (A)  THE  LEAD  PUBLIC  ENTITY  MAY  ELECT TO TAKE OVER THE QUALIFYING
PUBLIC INFRASTRUCTURE AND IN SUCH CASE IT SHALL SUCCEED TO  ALL  OF  THE
RIGHT,  TITLE AND INTEREST IN SUCH PUBLIC INFRASTRUCTURE, SUBJECT TO ANY
SECURITY INTEREST ON REVENUES PREVIOUSLY GRANTED BY THE  PRIVATE  ENTITY
OR  SPECIAL  PURPOSE VEHICLE TO ANY PERSON PROVIDING FINANCING THEREFOR;
AND
  (B) THE LEAD PUBLIC ENTITY MAY TERMINATE THE COMPREHENSIVE OR  INTERIM
AGREEMENT AND EXERCISE ANY OTHER RIGHTS AND REMEDIES WHICH MAY BE AVAIL-
ABLE TO IT AT LAW OR IN EQUITY.
  2.  IN THE EVENT THE LEAD PUBLIC ENTITY ELECTS TO TAKE OVER QUALIFYING
PUBLIC INFRASTRUCTURE PURSUANT TO SUBDIVISION ONE OF THIS  SECTION,  THE
LEAD PUBLIC ENTITY MAY DEVELOP AND/OR OPERATE THE PUBLIC INFRASTRUCTURE,
IMPOSE  USER  FEES  OR  RENTS  FOR  THE  USE  THEREOF,  COMPLY  WITH ANY
THIRD-PARTY CONTRACTS AS IF  IT  WERE  THE  PRIVATE  ENTITY  OR  SPECIAL
PURPOSE  VEHICLE,  AND SOLICIT PROPOSALS FOR THE CONTINUED OPERATION AND
MAINTENANCE OF THE PUBLIC INFRASTRUCTURE BY PRIVATE ENTITIES. ANY REVEN-
UES THAT ARE SUBJECT TO A SECURITY INTEREST SHALL BE COLLECTED  FOR  THE
BENEFIT OF, AND PAID TO, SECURED PARTIES, AS THEIR INTERESTS MAY APPEAR,
TO  THE  EXTENT  NECESSARY  TO  SATISFY  THE PRIVATE ENTITY'S OR SPECIAL
PURPOSE VEHICLE'S OBLIGATIONS TO SECURED PARTIES, INCLUDING THE  MAINTE-
NANCE  OF  RESERVES AND SUCH SECURITY INTERESTS SHALL BE CORRESPONDINGLY
REDUCED AND, WHEN SATISFIED, RELEASED.  BEFORE ANY PAYMENTS TO,  OR  FOR
THE BENEFIT OF, SECURED PARTIES, THE LEAD PUBLIC ENTITY MAY USE REVENUES
TO PAY CURRENT OPERATION AND MAINTENANCE COSTS OF THE PUBLIC INFRASTRUC-
TURE,  INCLUDING COMPENSATION TO THE LEAD PUBLIC ENTITY FOR ITS SERVICES
IN OPERATING  AND  MAINTAINING  THE  QUALIFYING  PUBLIC  INFRASTRUCTURE.
REMAINING REVENUES, IF ANY, AFTER ALL PAYMENTS FOR OPERATION AND MAINTE-
NANCE  OF  THE PUBLIC CAPITAL INFRASTRUCTURE, AND TO, OR FOR THE BENEFIT
OF, SECURED PARTIES, HAVE BEEN MADE, MAY BE PAID TO THE  PRIVATE  ENTITY
OR SPECIAL PURPOSE VEHICLE, SUBJECT TO THE NEGOTIATED RATE OF RETURN, IF
THE  COMPREHENSIVE  AGREEMENT  SO  PROVIDES.  IN SUCH CASE, THE RIGHT TO

A. 8183                            13

RECEIVE SUCH PAYMENT, IF ANY, SHALL BE CONSIDERED JUST COMPENSATION  FOR
THE QUALIFYING PUBLIC INFRASTRUCTURE.
  3.  THE  FULL  FAITH AND CREDIT OF THE LEAD PUBLIC ENTITY SHALL NOT BE
PLEDGED TO SECURE ANY FINANCING OF THE PRIVATE ENTITY OR SPECIAL PURPOSE
VEHICLE BY THE ELECTION TO TAKE OVER THE QUALIFYING  PUBLIC  INFRASTRUC-
TURE.    ASSUMPTION OF OPERATION OF THE QUALIFYING PUBLIC INFRASTRUCTURE
SHALL NOT OBLIGATE THE LEAD PUBLIC ENTITY TO PAY ANY OBLIGATION  OF  THE
PRIVATE ENTITY FROM SOURCES OTHER THAN REVENUES.
  4.  IN  THE  EVENT OF TERMINATION OF A COMPREHENSIVE OR INTERIM AGREE-
MENT, THE AUTHORITY AND DUTIES OF THE PRIVATE ENTITY  OR SPECIAL PURPOSE
VEHICLE CEASE, EXCEPT FOR ANY DUTIES AND OBLIGATIONS THAT EXTEND  BEYOND
THE  TERMINATION  AS PROVIDED IN THE COMPREHENSIVE OR INTERIM AGREEMENT,
AND THE QUALIFYING PUBLIC INFRASTRUCTURE  REVERTS  TO  THE  LEAD  PUBLIC
ENTITY AND SHALL BE DEDICATED TO THE LEAD PUBLIC ENTITY FOR PUBLIC USE.
  S  279-A.  PUBLIC  WORK. EVERY EMPLOYEE OF A PRIVATE ENTITY OR SPECIAL
PURPOSE VEHICLE AND EVERY WORKER EMPLOYED PURSUANT TO THE EXECUTION OF A
COMPREHENSIVE AGREEMENT IN ACCORDANCE WITH THIS ARTICLE SHALL BE SUBJECT
TO THE HOURS, WAGES AND SUPPLEMENTS FOR PUBLIC WORK UNDER THE PROVISIONS
OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW.
  S 280. CONSTRUCTION. THE PROVISIONS OF THIS ARTICLE WHICH  ARE  INCON-
SISTENT  WITH ANY OTHER PROVISION OF STATE LAW SHALL BE DEEMED TO SUPER-
CEDE SUCH PROVISION OF LAW, AND THE PROVISIONS OF THIS ARTICLE SHALL  BE
CONTROLLING.
  S  281. SEVERABILITY.   IF ANY CLAUSE, SENTENCE, PARAGRAPH, SECTION OR
PART OF THIS ARTICLE SHALL BE ADJUDGED BY ANY COURT OF COMPETENT  JURIS-
DICTION  TO  BE  INVALID  AND  AFTER  EXHAUSTION OF ALL FURTHER JUDICIAL
REVIEW, THE JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE  REMAIN-
DER  THEREOF,  BUT  SHALL  BE  CONFINED  IN ITS OPERATION TO THE CLAUSE,
SENTENCE, PARAGRAPH, SECTION OR PART OF THIS ARTICLE  DIRECTLY  INVOLVED
IN THE CONTROVERSY IN WHICH THE JUDGMENT SHALL HAVE BEEN RENDERED.
  S 3. This act shall take effect immediately.